(p. 57 of the transcript of May 12, 2024, paras. 5-33, emphases not in the original).
- We are of the opinion that my father's later version in the framework of his testimony that he served only as guarantor and that he "made a mistake in the wording", time after time, is inconsistent with the logic of the words and with the objective documents that were presented. His signature on the partnership agreement, the table detailing "Jacob + Avi's commission" in the amount of $166,500, as well as the email he sent to Yaakov in which he mentions "the commissions of Moses and ours." The sequence of alleged "mistakes" is not an "innocent" mistake, but rather a conscious attempt to distance and minimize its part. This is a twisting version, which changes according to need and does not meet the test of logic and common sense, and therefore, we do not give its version evidentiary weight and prefer what emerges from the documents.
- Yaakov confirmed in his testimony that such a transaction took place, and reiterated the claim that he had lost money as part of it. When asked about my father's involvement in the deal, when he was employed by another company, he replied evasively: "Ask him" and "Where do I have to decide for him?" (p. 29 of the transcript of May 30, 2024, paras. 23-31).
- For the first time, in his testimony, Yaakov claimed that the partnership agreement was a forged document (p. 29 of the minutes of May 30, 2024, paras. 26-33), a claim that was not supported by his affidavit. With regard to the fees document, he claimed for the first time that he did not know the page and was not familiar with what was stated in it; He also claimed that he had no idea who Moshe was, despite having signed a partnership agreement with him: "... I have no idea. It's, I think, don't take me for a word, that it's someone who's a friend of my father's." (p. 29 of the minutes of May 30, 2024, paras. 1-10, paras. 33-37). This pattern of evasions and new claims contradicts Scripture and does not support its version.
- As for the claim of forgery raised by Yaakov, we will clarify that this is a claim that requires detail and support. Since it was not claimed in his affidavit and was first raised in his testimony, and in any case it was not supported by prima facie evidence (including an expert opinion on the subject), it should not be given weight, and therefore the claim of forgery is rejected.
- The evidence brought before us shows that Avi, in parallel with his work for the plaintiff, had significant business relationships with Yaakov, Iris Marketing and other third parties, including engagements with the Indian company. His later version, according to which he served only as a guarantor or that there were drafting errors, was found to be unreliable, inconsistent with the evidence, and intended to minimize his part.
- Avi signed a partnership agreement in which future commissions were set for him and Yaakov, and emails and tables dealing with the distribution of commissions were sent - all of which attest to my father's direct involvement. Obviously, as long as it was not agreed otherwise by the plaintiff, my father should have devoted all his energy to the benefit of the workplace. Promoting personal businesses at the expense of working hours constitutes a breach of his employment contract in bad faith and a breach of the duty of fiduciary duty that justifies providing compensation without proof of damage.
- It should be clarified that these obligations apply even beyond working hours. Therefore, the management of the personal business by Avi created a clear conflict of interest while harming the plaintiff's interests. Avi did not share his activity with the plaintiff, and in fact promoted a parallel business during the corona period, all while he served as an employee of the plaintiff and thus acted in contravention of his contractual obligations.
- At the same time, we are of the opinion that the plaintiff should not be awarded monetary compensation. This is because the oxygen generators, the subject of the transaction, are not in the plaintiff's field of activity, and this is not a direct competition in it. In addition, the extent of the damage has not been proven or clarified, hence it is not necessary to provide monetary compensation when the products are not related to the plaintiff's field of business.
The Crimson deal
- Tsafrir attached a price quote for the sale of gloves addressed to the Crimson company, which carries Iris Marketing's stationery, in which Avi is identified as a sales manager. The proposal is dated April 12, 2021 and stands at $100,800,000 (Appendix 39 to Tsafrir's affidavit). Despite the unusual scope of the proposal, Avi claimed that his share was limited to administrative assistance only to Yaakov and Iris as a token of gratitudeto H. It was further noted that to the best of his knowledge, the transaction was not executed (paragraphs 80-81 of my father's affidavit). Therefore, Avi admits in his affidavit that he was involved in the transaction, and did not deny that he issued the offer and that he was identified in it as a sales manager on behalf of Iris Marketing.
- Despite the inclusion in my father's affidavit regarding this transaction, Yaakov claims in his affidavit that Crimson is not known to him at all, and that the document "seems to me to be a forgery." (Paragraph 26.11 of Yaakov's affidavit). In the absence of any support for the claim of forgery, this is a general denial that does not undermine the evidence, and the version of the father who ties the documents himself should be preferred.
- My father's testimony on the subject was evasive, in order to distance himself from the activity described; on the one hand, he claimed that "it is clear that this is not a small deal," and on the other hand, he added that it was a price quote, it was not even a deal. (p. 55 of the transcript of May 12, 2024, paras. 29-32). However, despite the attempts to distance himself, he admitted to the court that he had seen the document (p. 55 of the transcript, paras. 12-15) and even stated in his affidavit that he had acted on the matter in order to help Yaakov and to reward him for saving the plaintiff. In any case, it appears that Avi acted to promote these private businesses of Iris Marketing, in contravention of his explicit obligations in the employment agreement with the plaintiff regarding a conflict of interest and work for third parties.
- Yaakov's testimony on the subject was unreliable, on the one hand, he denied that Crimson was a customer of Iris Marketing, and on the other hand, he noted that he may have offered her the attached offer. This is what emerged from his testimony:
"The witness, Mr. Moas: It doesn't appear on my list of clients, if that's what you want to hear from me, it doesn't appear on my list of clients and marketing. Is that ok?